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EXHIBIT 4.4
INFORMATION RESOURCE ENGINEERING, INC.
2000 NONQUALIFIED STOCK OPTION PLAN
1. Establishment, Purpose and Types of Options
Information Resource Engineering, Inc. hereby establishes the Information
Resource Engineering, Inc. 2000 Nonqualified Stock Option Plan (the "Plan"). The
purpose of the Plan is to promote the long-term growth and profitability of
Information Resource Engineering, Inc. (the "Corporation") by (i) providing
employees, officers and directors with incentives to improve stockholder value
and to contribute to the growth and financial success of the Corporation, and
(ii) enabling the Corporation to attract and retain as employees, officers and
directors the best available persons.
The Plan shall be administered as a "broadly based" plan, as such term is
defined and interpreted by the National Association of Securities Dealers, Inc.
("NASD") under NASD Rule 4310(c)(25)(G), under which more than 50 percent of the
Options will be granted to rank and file employees who are neither officers
(which includes any employees at the level of Vice President or above) or
directors of the Corporation. The Plan permits the granting of stock options
which are not qualified under Section 422 of the Internal Revenue Code of 1986,
as amended ("Options").
2. Definitions
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Change in Control" shall mean: (i) any sale, exchange or other
disposition of substantially all of the Corporation's assets or over 50% of its
Common Stock; or (ii) any merger, share exchange, consolidation or other
reorganization or business combination in which the Corporation is not the
surviving or continuing corporation, or in which the Corporation's stockholders
become entitled to receive cash, securities of the Corporation other than voting
common stock, or securities of another issuer.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and any regulations issued thereunder.
(d) "Committee" shall mean the Board or committee of Board members
appointed pursuant to Section 3 of the Plan to administer the Plan.
(e) "Common Stock" shall mean shares of the Corporation's common
stock.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Fair Market Value" of a share of the Corporation's Common Stock
for any purpose on a particular date shall be determined as follows: (1) if
there is a public market for the Common Stock, the Fair Market Value per share
shall be the average of the bid and asked prices of the Common Stock for such
day if the Common Stock is then included for quotation on the Nasdaq Small-Cap
Market or, the Fair Market Value per share shall be the closing price of the
Common Stock for such day if the Common Stock is then included on the Nasdaq
National Market or listed on the New York, American or Pacific Stock Exchange,
or (2) if there is no public market for the Common Stock, the Fair Market Value
of the Common Stock shall be determined in good faith by the Board or Committee
in such manner as it may deem equitable for Plan purposes. The Board or the
Committee may rely upon published quotations in The Wall Street Journal or a
comparable publication for purposes of the calculation of the Fair Market Value
per share as set forth above.
(h) "Grant Agreement" shall mean a written agreement between the
Corporation and a grantee memorializing the terms and conditions of an Option
granted pursuant to the Plan.
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(i) "Grant Date" shall mean the date on which the Committee formally
acts to grant an Option to a grantee or such other date as the Committee shall
so designate at the time of taking such formal action.
(j) "Parent" shall mean a corporation, whether now or hereafter
existing, within the meaning of the definition of "parent corporation" provided
in Section 424(e) of the Code, or any successor thereto of similar import.
(k) "Rule 16b-3" shall mean Rule 16b-3 as in effect under the Exchange
Act on the effective date of the Plan, or any successor provision prescribing
conditions necessary to exempt the issuance of securities under the Plan (and
further transactions in such securities) from Section 16(b) of the Exchange Act.
(l) "Subsidiary" and "subsidiaries" shall mean only a corporation or
corporations, whether now or hereafter existing, within the meaning of the
definition of "subsidiary corporation" provided in Section 424(f) of the Code,
or any successor thereto of similar import.
3. Administration
(a) Procedure. The Plan shall be administered by the Board. In the
alternative, the Board may appoint a Committee to administer the Plan consisting
solely of two (2) or more members of the Board who are "nonemployee directors"
within the meaning of Rule 16b-3 and "outside directors" within the meaning of
Code Section 162(m). Once appointed, the Committee shall continue to serve until
otherwise directed by the Board. From time to time, the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies, however caused, and remove all members of the Committee and,
thereafter, directly administer the Plan. In the event that the Board is the
administrator of the Plan in lieu of a Committee, the term "Committee" as used
herein shall be deemed to mean the Board.
Members of the Board or Committee who are either eligible for
Options or have been granted Options may vote on any matters affecting the
administration of the Plan or the grant of Options pursuant to the Plan, except
that no such member shall act upon the granting of an Option to himself or
herself, but any such member may be counted in determining the existence of a
quorum at any meeting of the Board or the Committee during which action is taken
with respect to the granting of an Option to him or her.
The Committee shall meet at such times and places and upon such
notice as it may determine. A majority of the Committee shall constitute a
quorum. Any acts by the Committee may be taken at any meeting at which a quorum
is present and shall be by majority vote of those members entitled to vote.
Additionally, any acts reduced to writing or approved in writing by all of the
members of the Committee shall be valid acts of the Committee.
(b) Powers of the Committee. The Committee shall have all the powers
vested in it by the terms of the Plan, such powers to include authority, in its
sole and absolute discretion, to grant Options under the Plan, prescribe Grant
Agreements evidencing such Options and establish programs for granting Options.
The Committee shall have full power and authority to take all other actions
necessary to carry out the purpose and intent of the Plan, including, but not
limited to, the authority to:
(i) determine the eligible persons to whom, and the time or times
at which Options shall be granted,
(ii) determine the number of shares to be covered by or used for
reference purposes for each Option,
(iii) impose such terms, limitations, restrictions and conditions
upon any such Option as the Committee shall deem appropriate,
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(iv) modify, extend or renew outstanding Options, accept the
surrender of outstanding Options and substitute new Options, provided that no
such action shall be taken with respect to any outstanding Option which would
adversely affect the grantee without the grantee's consent, and
(v) accelerate or otherwise change the time in which an Option may
be exercised or becomes payable and to waive or accelerate the lapse, in whole
or in part, of any restriction or condition with respect to such Option,
including, but not limited to, any restriction or condition with respect to the
vesting or exercisability of an Option following termination of any grantee's
employment.
The Committee shall have full power and authority to administer and interpret
the Plan and to adopt such rules, regulations, agreements, guidelines and
instruments for the administration of the Plan and for the conduct of its
business as the Committee deems necessary or advisable and to interpret same,
all within the Committee's sole and absolute discretion.
(d) Limited Liability. To the maximum extent permitted by law, no
member of the Board or Committee shall be liable for any action taken or
decision made in good faith relating to the Plan or any Option thereunder.
(e) Indemnification. To the maximum extent permitted by law, the
members of the Board and Committee shall be indemnified by the Corporation in
respect of all their activities under the Plan.
(f) Effect of Committee's Decision. All actions taken and decisions
and determinations made by the Committee on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Committee's sole
and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Corporation, its stockholders, any participants in the
Plan and any other employee of the Corporation, and their respective successors
in interest.
4. Shares Available for the Plan; Maximum Options
Subject to adjustments as provided in Section 9 of the Plan, the shares
of stock that may be delivered or purchased under the Plan shall not exceed an
aggregate of 300,000 shares of Common Stock of the Corporation and the
Corporation shall reserve said number of shares of Common Stock for issuance
pursuant to the Plan. If any Option, or portion of an Option, under the Plan
expires or terminates unexercised, becomes unexercisable or is forfeited or
otherwise terminated, surrendered or canceled as to any shares, the shares
subject to such Option shall thereafter be available for further Options under
the Plan.
5. Participation
Participation in the Plan shall be open to all employees, officers, and
directors of the Corporation, or of any Parent or Subsidiary of the Corporation,
as may be selected by the Committee from time to time. Options may be granted to
such eligible persons and for or with respect to such number of shares of Common
Stock as the Committee shall determine, subject to the limitations in Sections 1
and 4 of the Plan. A grant of an Option made in any one year to an eligible
person shall neither guarantee nor preclude a further grant of an Option to such
person in that year or subsequent years.
6. Stock Options
Subject to the other applicable provisions of the Plan, the Committee may
from time to time grant to eligible participants nonqualified stock options,
which shall be subject to the following terms and conditions.
(a) Grant of Option. The grant of a stock option shall be evidenced by
a Grant Agreement, executed by the Corporation and the grantee, stating the
number of shares of Common Stock subject to the stock option evidenced thereby
and the terms and conditions of such stock option, in such form as the Committee
may from time to time determine.
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(b) Price. The price per share payable upon the exercise of each stock
option ("exercise price") shall be determined by the Committee, but in no event
shall be less than 100% of the Fair market value of the Common Stock on the
Grant Date.
(c) Payment. Stock options may be exercised in whole or in part by
payment of the exercise price of the shares to be acquired in accordance with
the provisions of the Grant Agreement, and/or such rules and regulations as the
Committee may have prescribed, and/or such determinations, orders, or decisions
as the Committee may have made. Payment may be made in cash (or cash equivalents
acceptable to the Committee) or, if permitted by the Committee in its sole
discretion, in shares of Common Stock or a combination of cash and shares of
Common Stock, or by such other means as the Committee may prescribe. The Fair
Market Value of shares of Common Stock delivered on exercise of stock options
shall be determined as of the date of exercise. Shares of Common Stock delivered
in payment of the exercise price may be previously owned shares or, if approved
by the Committee, shares acquired upon exercise of the stock option. Any
fractional share will be paid in cash. The Corporation may make or guarantee
loans to grantees to assist grantees in exercising stock options and satisfying
any related withholding tax obligations.
If the Common Stock is registered under Section 12(b) or 12(g) of the
Exchange Act, the Committee, subject to such limitations as it may determine,
may authorize payment of the exercise price, in whole or in part, by delivery of
a properly executed exercise notice, together with irrevocable instructions, to:
(i) a brokerage firm to deliver promptly to the Corporation the aggregate amount
of sale or loan proceeds to pay the exercise price and any withholding tax
obligations that may arise in connection with the exercise, and (ii) the
Corporation to deliver the certificates for such purchased shares directly to
such brokerage firm.
(d) Terms of Options. The term during which each stock option may be
exercised shall be determined by the Committee; provided, however, that in no
event shall a stock option be exercisable more than ten years from the date it
is granted. Prior to the exercise of the stock option and delivery of the shares
certificates represented thereby, the grantee shall have none of the rights of a
stockholder with respect to any shares represented by an outstanding stock
option.
(e) Other Terms and Conditions. Stock options may contain such other
provisions, not inconsistent with the provisions of the Plan, as the Committee
shall determine appropriate from time to time.
7. Withholding of Taxes
The Corporation may require, as a condition to the exercise of an Option
granted under the Plan (hereinafter collectively referred to as a "taxable
event"), that the grantee pay to the Corporation, in cash or, if permitted by
the Committee in its sole discretion, in shares of Common Stock, including
shares acquired upon exercise of the Option, valued at Fair Market Value on the
date as of which the withholding tax liability is determined, any federal, state
or local taxes of any kind required by law to be withheld with respect to any
taxable event under the Plan. The Corporation, to the extent permitted or
required by law, shall have the right to deduct from any payment of any kind
(including salary or bonus) otherwise due to a grantee any federal, state or
local taxes of any kind required by law to be withheld with respect to any
taxable event under the Plan, or to retain or sell without notice a sufficient
number of the shares to be issued to such grantee to cover any such taxes.
8. Transferability
No Option granted under the Plan shall be transferable by a grantee
otherwise than by will or the laws of descent and distribution. Unless otherwise
determined by the Committee in accord with the provisions of the immediately
preceding sentence, an Option may be exercised during the lifetime of the
grantee, only by the grantee or, during the period the grantee is under a legal
disability, by the grantee's guardian or legal representative.
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9. Adjustments; Business Combinations
In the event of a reclassification, recapitalization, stock split, stock
dividend, combination of shares, or other similar event, the maximum number and
kind of shares reserved for issuance or with respect to which Options may be
granted under the Plan as provided in Section 4 shall be adjusted to reflect
such event, and the Committee shall make such adjustments as it deems
appropriate and equitable in the number, kind and price of shares covered by
outstanding Options made under the Plan, and in any other matters which relate
to Options and which are affected by the changes in the Common Stock referred to
above.
In the event of any proposed Change in Control, the Committee shall take
such action as it deems appropriate and equitable to effectuate the purposes of
this Plan and to protect the grantees of Options, which action may include, but
without limitation, any one or more of the following: (i) acceleration or change
of the exercise and/or expiration dates of any Option to require that exercise
be made, if at all, prior to the Change in Control; (ii) cancellation of any
Option upon payment to the holder in cash of the Fair Market Value of the Common
Stock subject to such Option as of the date of (and, to the extent applicable,
as established for purposes of) the Change in Control, less the aggregate
exercise price, if any, of the Option; and (iii) in any case where equity
securities of another entity are proposed to be delivered in exchange for or
with respect to Common Stock of the Corporation, arrangements to have such other
entity replace the Options granted hereunder with Options with respect to such
other securities, with appropriate adjustments in the number of shares subject
to, and the exercise prices under, the Option.
The Committee is authorized to make adjustments in the terms and
conditions of, and the criteria included in, Options in recognition of unusual
or nonrecurring events (including, without limitation, the events described in
the preceding two paragraphs of this Section 9) affecting the Corporation, or
the financial statements of the Corporation or any Subsidiary, or of changes in
applicable laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan.
In the event the Corporation dissolves and liquidates (other than
pursuant to a plan of merger or reorganization), then notwithstanding any
restrictions on exercise set forth in this Plan or any Grant Agreement, or other
agreement evidencing a stock option: (i) each grantee shall have the right to
exercise his stock option at any time up to ten (10) days prior to the effective
date of such liquidation and dissolution; and (ii) the Committee may make
arrangements with the grantees for the payment of appropriate consideration to
them for the cancellation and surrender of any stock option that is so canceled
or surrendered at any time up to ten (10) days prior to the effective date of
such liquidation and dissolution. The Committee may establish a different period
(and different conditions) for such exercise, delivery, cancellation, or
surrender to avoid subjecting the grantee to liability under Section 16(b) of
the Exchange Act. Any stock option not so exercised, canceled, or surrendered
shall terminate on the last day for exercise prior to such effective date.
Except as hereinbefore expressly provided, issuance by the Corporation of
shares of stock of any class or securities convertible into shares of stock of
any class, for cash, property, labor or services, upon direct sale, upon the
exercise of rights or warranty to subscribe therefore, or upon conversion of
shares or obligations of the Corporation convertible into such shares or other
securities, and in any case whether or not for fair value, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number of
shares of Common Stock subject to Options theretofore granted or the purchase
price per share of Common Stock subject to Options.
10. Termination and Modification of the Plan
The Board, without further approval of the stockholders, may modify or
terminate the Plan or any portion thereof at any time, except that no
modification shall become effective without prior approval of the stockholders
of the Corporation if stockholder approval is necessary to comply with any tax
or regulatory requirement or rule of any exchange or Nasdaq System upon which
the Common Stock is listed or quoted.
The Committee shall be authorized to make minor or administrative
modifications to the Plan as well as modifications to the Plan that may be
dictated by requirements of federal or state laws applicable to
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the Corporation or that may be authorized or made desirable by such laws. The
Committee may amend or modify the grant of any outstanding Option in any manner
to the extent that the Committee would have had the authority to make such
Option as so modified or amended. No modification may be made that would
materially adversely affect any Option previously made under the Plan without
the approval of the grantee.
11. Non-Guarantee of Employment
Nothing in the Plan or in any Grant Agreement thereunder shall confer any
right on an employee to continue in the employ of the Corporation or shall
interfere in any way with the right of the Corporation to terminate an employee
at any time.
12. Termination of Employment
For purposes of maintaining a grantee's continuous status as an employee
and accrual of rights under any Option, transfer of an employee among the
Corporation and the Corporation's Parent or Subsidiaries shall not be considered
a termination of employment. Nor shall it be considered a termination of
employment for such purposes if an employee is placed on military or sick leave
or such other leave of absence which is considered as continuing intact the
employment relationship; in such a case, the employment relationship shall be
continued until the date when an employee's right to reemployment shall no
longer be guaranteed either by law or contract.
13. Written Agreement
Each Grant Agreement entered into between the Corporation and a grantee
with respect to an Option granted under the Plan shall incorporate the terms of
this Plan and shall contain such provisions, consistent with the provisions of
the Plan, as may be established by the Committee.
14. Non-Uniform Determinations
The Committee's determinations under the Plan (including without
limitation determinations of the persons to receive Options, the form, amount
and timing of such Options, the terms and provisions of such Options and the
agreements evidencing same) need not be uniform and may be made by it
selectively among persons who receive, or are eligible to receive, Options under
the Plan, whether or not such persons are similarly situated.
15. Limitation on Benefits
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3. To the extent any provision of the Plan or action by
the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
16. Listing and Registration
If the Corporation determines that the listing, registration or
qualification upon any securities exchange or upon any listing or quotation
system established by the National Association of Securities Dealers, Inc.
("Nasdaq System") or under any law, of shares subject to any Option is necessary
or desirable as a condition of, or in connection with, the granting of same or
the issue or purchase of shares thereunder, no such Option may be exercised in
whole or in part and no restrictions on such Option shall lapse, unless such
listing, registration or qualification is effected free of any conditions not
acceptable to the Corporation.
17. Compliance with Securities Law
Common Stock shall not be issued with respect to an Option granted under
the Plan unless the exercise of such Option and the issuance and delivery of
share certificates for such Common Stock pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
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1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any national securities exchange or Nasdaq
System upon which the Common Stock may then be listed or quoted, and shall be
further subject to the approval of counsel for the Corporation with respect to
such compliance to the extent such approval is sought by the Committee.
Stock certificates evidencing unregistered shares acquired upon the
exercise of Options shall contain a restrictive securities legend substantially
as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
18. No Restriction of Corporate Action
Nothing contained in the Plan shall be construed to prevent the
Corporation or any Parent or Subsidiary from taking any corporate action which
is deemed by the Corporation or such Parent or Subsidiary to be appropriate or
in its best interest, whether or not such action would have an adverse effect on
the Plan or any Option issued under the Plan. No employee, beneficiary or other
person shall have any claim against the Corporation or any Parent or Subsidiary
as a result of such action.
19. No Trust or Fund Created
Neither the Plan nor any Option shall create or be construed to create a
trust or separate fund of any kind or a fiduciary relationship between the
Corporation and a grantee or any other person. To the extent that any grantee or
other person acquires a right to receive stock or other consideration from the
Corporation pursuant to an Option, such right shall be no greater than the right
of any unsecured general creditor of the Corporation.
20. Governing Law
The validity, construction and effect of the Plan, of Grant Agreements
entered into pursuant to the Plan, and of any rules, regulations, determinations
or decisions made by the Board or Committee relating to the Plan or such Grant
Agreements, and the rights of any and all persons having or claiming to have any
interest therein or thereunder, shall be determined exclusively in accordance
with applicable federal laws and the laws of the State of Delaware without
regard to its conflict of laws rules and principles.
21. Plan Subject to Articles and By-Laws
This Plan is subject to the Certificate of Incorporation and By-Laws of
the Corporation, as they may be amended from time to time.
22. Effective Date; Termination Date
The Plan is effective as of July 19, 2000, the date on which the Plan was
adopted by the Board. No Option shall be granted under the Plan after the close
of business on the day immediately preceding the tenth anniversary of the
effective date of the Plan. Subject to other applicable provisions of the Plan,
all Options made under the Plan prior to such termination of the Plan shall
remain in effect until such Options have been satisfied or terminated in
accordance with the Plan and the terms of such Options.
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